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MagistrateDismissedElection Petition dated 6th September, 2017· [2017] KEMC 11 (KLR)

Bakari Hamisi Shee v Independent Election and Boundary Commission & 2 others [2017] KEMC 11 (KLR)

Chief Magistrate's Court (Election Court)
19 December 2017
2,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out an election petition because its paperwork contradicted itself, confirming that sloppily drafted petitions won't be rescued by court discretion.

What this practically means

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Executive summary

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This ruling by Chief Magistrate Doreen Mulekyo determined three interlocutory applications in an election petition challenging the election of a Member of County Assembly for Pongwe Kikoneni Ward, Lunga Lunga Constituency, in the 8th August 2017 General Election. The 1st and 2nd Respondents sought striking out of the Petition for non-compliance with Rules 8(1) and 12(2) of the Election (Parliamentary and County) Elections Rules, 2017, alleging failure to state the petitioner's address, the results and the date of declaration. The 3rd Respondent sought striking out on similar grounds under Rule 8(1)(c). The Petitioner in turn sought to have the responses struck out for failure to file notices of address for service within the Rule 10(4) timelines. The court found that while the Petition complied with Rule 8(1)(a), it failed to state the results and dates, and the supporting affidavit contained contradictions - describing the deponent variously as a registered voter, chief agent and candidate - such that the Petition and affidavit were 'mutually exclusive' and 'disjunctive'. Adopting the 'third view' in Samuel Kazungu Kambi -Vs- IEBC that substantial compliance suffices but hopeless defects cannot be cured by Article 159(2)(d), the court struck out the Petition on both Respondents' applications, dismissed the Petitioner's application, and summarily rejected the Petition under Section 79 of the Elections Act, with costs to the Respondents capped at Kshs. 100,000.

Key legal issues

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01

Effect of misdescription and non-compliance with Rules 8(1) and 12(2) on an election petition

Holding

The Petition was struck out because the Petition and the supporting affidavit were mutually exclusive, so the Petition was unsupported by an affidavit disclosing the results as required by law.

Reasoning

The court adopted the 'third view' in Samuel Kazungu Kambi that the determinant factor is the extent of compliance in each case. While the Petition complied with Rule 8(1)(a) on name and address, it omitted the results and dates of declaration. The affidavit purportedly supplying these described the deponent as the chief agent of the Jubilee candidate and referred to 'my votes', creating contradictions so fundamental that Article 159(2)(d) could not cure them.

p. 3
02

Whether the Respondents' failure to file notices of address for service within Rule 10(4) warranted striking out their responses

Holding

The Petitioner's application was dismissed; the Respondents had substantially complied and the Petitioner was not prejudiced.

Reasoning

The court applied the substantial-compliance standard. The 1st and 2nd Respondents filed their notices albeit late, and the 3rd Respondent's notice of appointment was treated as a notice of address for service as a matter of form. The Petitioner himself served the Petition outside the seven days allowed by Rule 10(1), weakening his position on hierarchical culpability.

p. 4

Legal principles established

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  • Where a Petition and its supporting affidavit are so out of sync that they fail to communicate the Petitioner's complaints and prayers, Article 159(2)(d) cannot save the Petition from being struck out.
  • Substantial compliance with the Election Petition Rules is sufficient; strict 100% compliance is not required, but the defect must not render the petition hopeless.

Court orders

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  1. 1.Allowed the Notice of Motion by the 1st and 2nd Respondents dated 16th October, 2017 striking out the Petition for failure to comply with Rule 8(1) and 12(2), with costs
  2. 2.Allowed the Notice of Motion by the 3rd Respondent dated 6th November, 2017 and struck out the Petition, with costs to the 3rd Respondent
  3. 3.Dismissed the Petitioner's Notice of Motion dated 2nd November, 2017 with costs
  4. 4.Summarily rejected and struck out the Petition under Section 79 of the Elections Act
  5. 5.Costs either way capped at Kshs. 100,000

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Articles 22, 23, 27, 50, 87, 105, 259
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 3A
  • Elections Act No. 24 of 2011Section 83
  • Elections Act No. 24 of 2011Section 79
  • The Election (Parliamentary and County) Elections Rules, 2017 (Legal Notice No. 116)Rules 4, 5, 8(1), 8(4)(b), 10(1), 10(4), 11(1), 12(1)(c), 12(2)

Cases cited (1)

  • Samuel Kazungu Kambi & Another -Vs- IEBC & 3 Others
    Election Petition 4 of 2017
Jurisdiction invoked
Articles 87 and 105 of the Constitution; Elections Act No. 24 of 2011; Election (Parliamentary and County) Elections Rules, 2017

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bakari Hamisi Shee v Independent Election and Boundary Commission & 2 others [2017] KEMC 11 (KLR)", Case Analysis (2017). Election Petition dated 6th September, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/11/eng@2017-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.